Republicans dare White House to ignore Lerner contempt

House Republicans are daring the White House to ignore its vote to hold Lois Lerner in contempt.

When Republicans hold the former top IRS official in contempt of Congress later on Wednesday, they’ll put her fate in the hands of President Barack Obama’s Justice Department — the very place they accuse of conducting a sham IRS probe.

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While some legal experts are predicting the administration will refuse to take the citation to court, others say it would be unprecedented if they take that route, setting a new tone that undermines Congress’s contempt authority for generations.

“If DOJ decided for whatever reason not to go forward with Lerner in an instance where executive privilege was not raised, that indeed would be new and would signal a further weakening of the congressional contempt statute,” said Stan Brand, former House counsel.

The White House has not asserted executive privilege in this case.

It’s a risky legal gamble for House Republicans, who also have the power to bring their own civil suit against Lerner — one that does not rely on the Obama administration to prosecute the case. That’s what they did upon holding Attorney General Eric Holder in contempt in 2012.

“Justice is truly setting a new precedent if they say, ‘We just aren’t doing this,’” said Frederick Hill, a Republican Oversight spokesman. “It’s one thing when you have an executive privilege memo, but [if they ignore the contempt charge they’re] expanding that and essentially taking Congress’s power away from it and saying the administration can at any point and any time decide that it doesn’t want to pursue a contempt proceeding.”

Some legal experts are bewildered that Republicans aren’t trying to go around the Justice Department entirely with a civil contempt strategy in addition to the criminal contempt case.

While the criminal contempt charge carries a prison sentence and fine, a successful civil suit would simply end with a court order demanding Lerner testify. And if she refused that, then she’d be held in contempt of court and could be jailed.

“They don’t want to [go civil] because it sounds sexier to say, ‘Oh she’s going to be put in jail,’” Brand said. “Which leads me to believe they’re not that that serious. They’re just grandstanding.”

House Republicans will hold Lerner, the former head of the tax-exempt division that singled out tea party nonprofit applicants, in contempt for failing to comply with a subpoena to testify before Congress.

She asserted her Fifth Amendment right not to incriminate herself, but gave an opening statement professing her innocence at a high-profile hearing last May. Republicans said she inadvertently waived her constitutional rights, though lawyers disagree.

The contempt charge will go to the U.S. attorney’s office for the District of Columbia for potential prosecution in federal court. If Lerner is found guilty, she could get up to one year behind bars and up to a $100,000 fine, but would not necessarily be forced to testify, according to a Congressional Research Service contempt report.